COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ANTONIO MEJIA RUIZ, No. 08-14-00026-CR
§
Appellant, Appeal from the
§
v. 296th Judicial District Court
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of Collin County, Texas
THE STATE OF TEXAS, §
(TC# 296-82375-2012)
Appellee. §
O P I N I O N1
A jury found Antonio Mejia Ruiz guilty of continuous sexual abuse of a child and
sentenced him to life imprisonment. On appeal, Ruiz contends the trial court erred by failing to
instruct the jury on the lesser-included offense of aggravated sexual assault of a child. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The offense of continuous sexual abuse of a child (hereinafter, “CSAS”) occurs when a
person commits any of several enumerated acts of sexual abuse two or more times “during a period
. . . 30 or more days in duration[.]” See TEX.PENAL CODE ANN. § 21.02 (b)(1), (c)(1)-(8)(West
Supp. 2014). One of the enumerated acts is aggravated sexual assault of a child (hereinafter,
“ASAC”). See id. § 21.02 (c)(4). The indictment in this case alleged that, from on or about
1
This case was transferred to this Court from the Fifth Court of Appeals pursuant to an order issued by the Supreme
Court of Texas. See TEX.GOV’T CODE ANN. § 73.001 (West 2013).
March 30, 2012 to June 1, 2012, Ruiz committed eight separate and distinct acts of sexual abuse
against N.P., including six instances of ASAC: (1)-(2) penetrating N.P.’s vagina with his penis
and finger; (3)-(5) contacting N.P.’s vagina, anus, and mouth with his penis; and (6) contacting
N.P.’s vagina with his mouth. At the time of the commission of each of these acts, Ruiz was 19
years old and N.P. was 12 years old.2
There is no dispute that Ruiz sexually abused N.P. He confessed to investigating officers
that he had sexual intercourse with N.P. on three occasions, the first occurring sometime in
November or December 2011 in an alley, the second in March or April 2012 in the same alley, and
the third in May 2012 in a parking lot. Ruiz also confessed to other acts of sexual abuse,
including having N.P. perform fellatio on him and masturbate him on one of the intervening days
between the second and third instances of sexual intercourse. N.P. shared that she had sexual
intercourse with Ruiz on three occasions, the first occurring in an alley in late March 2012,
approximately one week after her 12th birthday,3 and the second and third instances occurring
sometime thereafter. Although N.P. was unable to pinpoint the specific dates on which the
second and third instances of sexual intercourse occurred, she related that these incidents took
place, respectively, in her friend’s apartment and in Ruiz’s truck. N.P. also related that the last act
of sexual abuse occurred at her friend’s apartment in June 2012. N.P. remembered the date of this
incident because it occurred at a party on or near the last day of school.
Contending that N.P.’s statements and testimony failed to establish with certainty “when
this all got started,” Ruiz requested an instruction on the lesser-included offense of ASAC to allow
2
It is a statutory requirement that, “at the time of the commission of each of the acts of sexual abuse, the actor is 17
years of age or older and the victim is a child younger than 14 years of age.” TEX.PENAL CODE ANN. § 21.02 (b)(2).
Ruiz does not contend this statutory requirement was not met.
3
N.P. was born March 23, 2000.
2
the jury to convict him if it did not “believe beyond a reasonable doubt that these incidents
occurred outside of the 30 day time frame[.]” The State objected, arguing that the instruction was
not warranted because “no rational jury could find anything but a continuous [offense]” based on
the “evidence from both [N.P.] and from the defendant’s statement that he gave to the detectives.”
The trial court denied Ruiz’s request.
LESSER-INCLUDED OFFENSE
Ruiz argues the trial court should have instructed the jury on the lesser-included offense of
ASAC because the jury could have disbelieved the testimony of the State’s witnesses and
concluded that the sexual abuse was committed in a 30-day period. But an instruction on a
lesser-included offense is not warranted merely because the jury may disbelieve crucial evidence
pertaining to the greater offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994).
Instead, it is warranted solely if there is some evidence in the record that would permit a jury
rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense.4
Id. In other words, there must be some evidence affirmatively rebutting or negating an element of
the greater offense, or some evidence subject to different interpretation, one of which rebuts or
negates the crucial element. Ramirez v. State, 976 S.W.2d 219, 227 (Tex.App.--El Paso 1998,
pet. ref’d). The State—correctly conceding ASAC is a lesser-included offense of
CSAC5—asserts that the trial court did not err by refusing to instruct the jury as requested by Ruiz
because there is no such evidence. We agree.
4
This is one of two requirements that must be met before a lesser-included offense is submitted to the jury. See Hall
v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). The other is that the charged offense also includes the lesser
offense. Id.
5
See Soliz v. State, 353 S.W.3d 850, 854 (Tex.Crim.App. 2011)(holding that “a[ ] [predicate] offense listed under
Subsection (c) will always” be a lesser offense of continuous sexual abuse because the latter “is, by its very definition,
the commission under certain circumstances of two or more of the offenses listed in Subsection (c)”)[Internal
quotations and emphasis omitted].
3
The record does not support an instruction on the lesser-included offense of ASAC. Ruiz
does not direct our attention to some evidence that all the acts of sexual abuse occurred only within
a 30-day window, and our examination of the record fails to so establish. While Ruiz is correct in
that the State did present evidence of a specific date on which the acts of sexual abuse ended, i.e.,
June 1, 2012, there is no evidence in the record to suggest that all the acts of sexual abuse did not
occur for 30 days or more. That a jury could disbelieve the testimony of the State’s witnesses
regarding the date range for the continuous sexual abuse is not affirmative evidence that the abuse
did not take place over the required number of days. See Bignall, 887 S.W.2d at 24. Even if jury
did not believe the State’s witnesses, the record establishes that the acts of sexual abuse occurred
for 30 days or more. In his stationhouse interview with the police, the English transcription of
which was admitted at trial, Ruiz divulged that he penetrated N.P.’s vagina with his finger in
March 2012 and had sexual intercourse with her the third time “[a]bout a month and a half or two”
before the interview, which took place on July 11, 2012. Based on the evidence in the record, a
jury could not rationally find that if Ruiz is guilty, he is guilty only of the lesser-included offense
of ASAC. Ruiz’s issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
May 29, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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